Filed 11/17/20 P. v. Sanchez CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOE ANGEL SANCHEZ,

Defendant and Appellant.

B299635

(Los Angeles County

Super. Ct. No. A960340)

APPEAL from an order of the Superior Court of Los 

Angeles County, Laura F. Priver, Judge. Affirmed.

Heather J. Manolakas, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Charles A. Lee and Stacy S. Schwartz, Deputy 

Attorneys General, for Plaintiff and Respondent.

__________________________
2

Defendant appeals the denial of his petition for 

resentencing under Penal Code section 1170.95.1 As defendant 

was not entitled to relief as a matter of law, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Underlying Offense, Conviction, and Appeal2

A. The Crimes

The facts supporting defendant’s murder conviction 

illustrate the adage that there is no honor among thieves. 

Defendant, the victim, and all of the other players were members 

of a robbery ring which focused on jewelry stores in the Los 

Angeles Jewelry Mart. The members of the ring included 

Michael Apardian, who planned the robberies; and Gustavo 

Alderette, who recruited the participants. 

Alderette recruited defendant to commit a robbery for the 

gang. Alderette and defendant had been friends for 13 years and 

they shared an apartment. 

On December 30, 1986, defendant attempted to rob the 

owner of V.N.T. Diamond Company at his shop. Defendant 

1 All undesignated statutory references are to the Penal 

Code.

2 We take our discussion of the facts from the opinion 

affirming defendant’s conviction. (People v. Sanchez (Dec. 17, 

1992, B057765) [nonpub. opn.].) The Attorney General initially 

sought judicial notice of our entire file in the prior appeal. The 

court’s file had been destroyed with the exception of the prior 

opinion. The Attorney General then submitted a second request 

for judicial notice, seeking judicial notice of several excerpts from 

the prior record, including the information, the verdicts, a few of 

the jury instructions, and selected pages from counsel’s 

argument. We grant that request, and rely on those documents 

in our discussion of the proceedings in the trial court.
3

bound and gagged the owner, struck him with a gun, and 

threatened to kill him if he did not open the safe. Defendant left 

empty-handed. 

Concerned that defendant was wanted for the first 

(attempted) robbery, Alderette recruited two more men, David 

Matters and Hector Estrada, for the next robbery. On 

February 11, 1987, Matters and Estrada entered Diamantina 

West and robbed the owner at gunpoint. They left with $52,000 

in jewelry, but no cash. When they turned the jewelry over to the 

rest of the gang, Alderette and Apardian expressed their

disappointment that Matters and Estrada did not get more.

The following day, Apardian gave Matters $200 to leave 

town; Matters left. 

A few days after the Diamantina West robbery, the victim 

discussed the crime with his fellow jewelry store owner, Alpo 

Eykjian, unaware that Eykjian was also part of the robbery ring. 

The Diamantina West owner exaggerated his loss to Eykjian. 

From this point on, the members of the gang turned on each 

other, with fatal consequences.

About 10 days after the robbery, defendant and Alderette 

brought Estrada – one of the two point men in the Diamantina 

West robbery – to their apartment. They attacked and bound 

Estrada, accusing him of having taken money in the robbery and 

not relinquishing it to the gang. They represented that they had 

already beaten Matters (who was in fact sent away), and 

threatened to kill Estrada if he did not disclose the whereabouts 

of the money. Defendant had a knife. Estrada denied that he 

and Matters had taken any money. Defendant and Alderette 

untied Estrada and told him it was Apardian who had accused 

him of taking the money. They told Estrada that Apardian was 
4

coming to the apartment and that he would have to kill Apardian 

to prove that the money had not been taken, or else they would 

kill Estrada. Believing his life was in jeopardy, Estrada agreed.

When Apardian arrived, defendant and Alderette attacked 

and bound him. Alderette gave Estrada the knife and told him to 

kill Apardian. Estrada stabbed Apardian twice. Alderette took 

Apardian’s bracelet, chain, watch and some money. Defendant, 

Alderette and Estrada worked together to dispose of Apardian’s 

body. Alderette gave Estrada money to disappear to Mexico. 

Apardian’s body was discovered shortly thereafter, with carpet 

fibers similar to those from the carpet in defendant and 

Alderette’s apartment. When defendant was arrested, he was 

wearing Apardian’s chain.

B. Defendant’s Trial

Defendant was charged by information with the attempted 

robbery of V.N.T. Diamond Company, the robbery of Diamantina 

West, the robbery of Apardian, and the murder of Apardian.3

Estrada pleaded guilty to the Diamantina robbery and the 

murder of Apardian. As part of his plea, he agreed to testify 

against defendant, which he did. Matters pleaded guilty to the 

Diamantina robbery and also testified against defendant, 

specifically recounting conversations in which defendant, 

Alderette and Estrada had admitted the Apardian murder. 

Finally, Alderette, who had also pleaded guilty to the 

Apardian murder, testified in defendant’s defense. He explained 

that, sometime after the robbery, there had been an argument, in 

Alderette’s apartment, in which Apardian accused Estrada of 

3 The disposition of charges against Eykjian, another 

member of the ring, is not revealed by the limited record before 

us. 
5

stealing from the rest of them and refused to pay Estrada for 

participating in the robbery. Alderette decided to calm Apardian 

by tying him up with the help of defendant and Estrada. 

Apardian became calm. To Alderette’s surprise, Estrada got a 

butcher knife from the kitchen and stabbed Apardian, killing 

him. Alderette testified that he nonetheless pleaded guilty to the 

Apardian murder because he felt responsible, and as part of a 

negotiated disposition that included unrelated charges against 

him.

Defendant was convicted of the attempted robbery of V.N.T. 

Diamond Company (§§ 664/211), the first degree murder of 

Apardian (§ 187, subd. (a)), and petty theft from Apardian

(§ 484), as a lesser offense to the charge of robbery. He was 

sentenced to 25 years to life in prison for the murder, with a 

consecutive determinate term for the attempted robbery and a 

concurrent term for the petty theft.

C. The Appeal

On appeal, defendant argued, among other things, that the 

trial court erred in refusing to instruct the jury on voluntary 

manslaughter. Defendant argued that Alderette’s testimony

supported a finding that Estrada, angry over not being paid, 

acted in the heat of passion in killing Apardian. The Court of 

Appeal found no instructional error, on the basis that if Estrada 

killed in the heat of passion, defendant “was not culpable for any 

homicide at all, since no evidence suggested that he [defendant]

personally acted upon a sudden quarrel or heat of passion.” 

2. Proceedings on Defendant’s Section 1170.95 Petition

On April 8, 2019, defendant filed a form petition for 

resentencing under section 1170.95. He requested counsel. He 

attached to the petition, with no explanation, two jury 
6

instructions apparently given in his case: CALJIC 3.00, 

indicating that aiders and abettors are principals in the 

commission of a crime; and a special instruction regarding the 

timing of defendant’s intent to steal from Apardian.4 He also 

included a copy of the verdict form showing he was found guilty 

of first degree murder.5

On June 13, 2019, the trial court denied the section 1170.95 

motion, without appointing counsel, based on its review of 

defendant’s submission “and the other documents available to the 

court.” The trial court concluded that the murder did not occur in 

the course of a robbery, and was not prosecuted under the 

doctrine of natural and probable consequences. To the contrary, 

defendant was a direct aider and abettor.6

Defendant filed a timely notice of appeal.

DISCUSSION

Senate Bill No. 1437 (SB 1437) invalidated the natural and 

probable consequences doctrine as it relates to murder, and 

4 Specifically, the instruction stated: “If you find that the 

taking of property, if any, from Mike Apardian, occurred after his 

death, then you must find the defendant not guilty of Count III, 

unless you find that the intent to steal existed prior to the 

killing.”

5 The verdict form does not specifically indicate the basis for 

the finding of first-degree murder. The Attorney General would 

later submit evidence indicating the only basis for first-degree 

murder submitted to the jury was premeditated murder. 

6 The trial court also found defendant was a “major 

participant” in the crime. In the present appeal, the Attorney 

General concedes that this finding was unnecessary, as it would 

be relevant only if defendant were convicted of felony murder.
7

narrowed liability for felony murder. (People v. Verdugo (2020) 

44 Cal.App.5th 320, 323 (Verdugo) review granted Mar. 18, 2020.) 

It also enacted section 1170.95, providing a means by which a 

defendant convicted of murder under prior authority could seek 

resentencing under the new version of the law.

Once a section 1170.95 petition is filed, there follows a 

multi-step process by which the court first determines whether 

the petition is facially complete, and, if so, whether the petitioner 

has made a prima facie showing that he falls within the 

provisions of statutory eligibility. (People v. Torres (2020) 

46 Cal.App.5th 1168, 1177 (Torres) review granted June 24, 2020, 

Verdugo, supra, 44 Cal.App.5th at pp. 329-330.) The materials 

which the court can review at this stage include the prior 

appellate opinion (People v. Lee (2020) 49 Cal.App.5th 254, 263,

review granted July 15, 2020; People v. Lewis (2020)

43 Cal.App.5th 1128, 1136, fn. 7, review granted Mar. 18, 2020)

and the jury instructions given in the defendant’s trial. (People v. 

Edwards (2020) 48 Cal.App.5th 666, 674, review granted July 8, 

2020.) If the court determines the petitioner is ineligible for 

relief as a matter of law, the petition is denied at this first stage; 

if not, the court proceeds to the next step. (Torres, at pp. 1177-

1178.)

At the first stage, the court’s inquiry is only whether the 

defendant is ineligible for relief under section 1170.95 as a 

matter of law. (Verdugo, supra, 44 Cal.App.5th at p. 329.) If, for 

example, the court’s review of the record of conviction necessarily 

establishes the defendant was convicted on a ground that 

remains valid after SB 1437’s amendment of murder law, the 

petition may be denied at this stage. (Id. at pp. 329-330.) But if 

the court “cannot rule out the possibility that the jury relied on” a 
8

theory invalidated by SB 1437, defendant has established a 

prima facie case of eligibility. (People v. Offley (2020) 

48 Cal.App.5th 588, 599.)

Here, the trial court concluded that defendant’s conviction 

was based on direct aiding and abetting, rendering him ineligible 

for relief as a matter of law. (§§ 188, 189.) We must determine 

whether defendant’s murder liability instead could have been 

based on felony murder or the natural and probable consequences 

doctrine.7

As to felony murder, the jury was not instructed on that 

theory. The jury was instructed in the language of CALJIC 8.10 

on the elements of murder: (1) a human being was killed; (2) the 

killing was unlawful; and (3) the killing was done with malice 

aforethought. The printout of the jury instruction given indicates 

that the form instruction offers, as an alternative to malice 

aforethought, that the killing was done during the commission or 

7 We note that our analysis would have been simpler if the 

parties had provided this court with the entire set of jury 

instructions given at trial. Defendant submitted two instructions 

as exhibits to his section 1170.95 petition; the Attorney General 

submitted several instructions in connection with its request for 

judicial notice. It therefore seems apparent that collectively the 

parties had access to all the jury instructions. This court does 

not. As we indicated in our response to the Attorney General’s 

first request for judicial notice, this court’s record of defendant’s 

appeal has been destroyed. While we conclude the limited record 

the parties have provided is sufficient to resolve this appeal, the 

parties generally should provide this court with the full jury 

instructions, when the presence or absence of jury instructions on 

felony murder and natural and probable consequences could 

conclusively resolve the appeal. 
9

attempted commission of a felony dangerous to human life. That 

portion of the instruction was crossed out in the version given to

the jury. The reporter’s transcript confirms that the part of the 

jury instruction providing for felony murder as an alternative to 

express malice was not given. 

As to natural and probable consequences, the evidence of 

an absence of instruction on the doctrine is less clear, due to the 

limited record the parties provided on appeal.

8 The facts and 

analysis in the prior appellate opinion, however, undermine any 

suggestion that the prosecutor proceeded on a theory of natural 

and probable consequences. The opinion recognizes there were 

only two factual scenarios presented by the evidence: 

(1) defendant and Alderette intentionally and with premeditation 

forced Estrada to murder Apardian, in which case defendant was 

guilty as a direct aider and abettor;9 or (2) Estrada acted “in a 

sudden fit of anger, taking [Alderette] and [defendant] by 

surprise,” in which case defendant “was not culpable for any 

8 In its respondent’s brief on appeal, the Attorney General 

represents that the jury was not instructed on the natural and 

probable consequences doctrine. Defendant does not 

affirmatively disagree.

9 Page six of the opening brief suggests the trial court ruling 

on defendant’s petition found that defendant “was not present 

during the murder . . . .” We believe this statement was a 

typographical error. The trial court’s actual words on the subject 

were, “Ultimately, at the petitioner’s direction, another individual 

stabbed the victim to death. The petitioner was not only present 

when this occurred but helped tie up the victim, threatened the 

victim and directed the other individual to stab the decedent. He 

and the other individuals then disposed of the body.” (Italics in 

the original.) 
10

homicide at all.” There simply was no third option of natural and 

probable consequences liability. By finding defendant guilty, the 

jury necessarily found that defendant was a direct aider and 

abettor and disbelieved the testimony that Estrada had acted 

rashly on his own.

Defendant does not suggest any basis on which a theory of 

natural and probable consequences could have been successfully 

pursued. While defendant was charged with robbery of

Apardian, he was convicted of the lesser included offense of petty 

theft, meaning the jury found the intent to steal was formed after 

the murder. 

Defendant makes no reasoned argument suggesting that he 

was, in fact, prosecuted on a natural and probable consequences 

theory. He argues only that his section 1170.95 petition should 

not have been summarily denied without counsel, because he 

“was entitled to counsel to determine under what theories the 

prosecutor proceeded at trial, . . . not only so that petitioner could 

present that evidence in support of his petition, but also to create 

an appellate record” and that “it is possible that the appointed 

counsel could discover some evidence to support appellant’s 

petition.” We find nothing in section 1170.95 that suggests a 

fishing expedition as suggested by appellant is required. The 

prima facie review is conducted as a matter of law, and requires 

no appointment of counsel.10 (Torres, supra, 46 Cal.App.5th at 

10 Defendant briefly argues that the denial of counsel violated 

his constitutional rights. He does not rely on the Sixth 

Amendment right to counsel, but suggests there was a violation 

of his due process rights because the trial court failed to follow 

the procedures guaranteed by section 1170.95 itself. As we 

conclude the statute did not require the appointment of counsel, 

there was no due process violation as defendant frames the issue.
11

p. 1177; Verdugo, supra, 44 Cal.App.5th at p. 323. Contra People 

v. Cooper (2020) 54 Cal.App.5th 106, review granted Nov. 10, 

2020.) The record demonstrates the defendant is legally 

ineligible for relief.

DISPOSITION

The order denying defendant’s section 1170.95 petition is 

affirmed.

RUBIN, P. J.

WE CONCUR:

BAKER, J.

MOOR, J.